Anthony Lewis on Free Speech, Gitmo, Nazis, and American Rights

I've seen a lot of other societies. Many of them have admirable aspects, but none of them has the same degree of openness that we do. I think that is our distinguishing characteristic, and I think we ought to treasure it. ... If we understand it, and know how hard it was to achieve, we might fight a littler harder to preserve it.-- Anthony Lewis, Journalist and Author,Freedom for the Thought That We Hate: A Biography of the First Amendment

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Anthony Lewis was a voice of compelling conscience when he covered Constitutional law issues, among others, for The New York Times. (Lewis was a long-time NYT journalist and columnist until his retirement in 2001.)

He hasn't stopped writing eloquent, thoughtful commentary on the beauty and sanctity of the Constitution, but now his articles appear in publications such as The Nation and The New York Review of Books.

Fortunately, he has just written a new book on the precious value of the First Amendment and its historical development from a legal perspective. Although it sounds arcane, Lewis knows how to distill complex legal issues down to clear, insightful analysis.

Lewis offers the kind of contemplative, informed reflection now rarely found in the mainstream media.

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BuzzFlash: We greatly enjoyed your columns when you were with TheNew York Times because they gave the long view and a deep sense of reverence for the importance of the law and the Constitution. Before we get to your new book, Freedom for the Thought That We Hate: A Biography of the First Amendment, we'd like to talk about that sense of justice that we always found in your columns, and certainly in the true story that your earlier book, Gideon's Trumpet, tells. Could you summarize what Gideon's Trumpet was about and why the legal struggle that unfolded in that time, back in the Sixties, was so important to our understanding of justice?

Anthony Lewis: I agree with you that the Gideon case is an example of justice working as it ought to. It doesn't always, not even in such a legalized country as this one.

Clarence Earl Gideon was a poor prisoner, a five-time loser in the penitentiary in Rayford, Florida, who wrote a letter to the Supreme Court saying he'd been convicted, his most recent time, without a lawyer, and he felt that was unconstitutional, unfair. The Court treated it as a petition for review, and agreed to hear the case, which was unusual, out of the thousands of cases it gets. It then and still receives handwritten petitions from prisoners and other people who are too poor to prepare all the printed documents. It agreed to hear Gideon's case.

When he said it, he wasn't right, because the Court had held twenty years earlier that our Constitution does not require the appointment of a free lawyer for somebody who's too poor to defend himself who's charged with a crime. In the Gideon case, the Court overturned its earlier decision and held that counsel was required. Then Gideon got a new trial with a lawyer and this time, the jury acquitted him, poetically proving that lawyers make a difference to somebody who's charged with a crime.

You wouldn't think that was a very complicated point to maintain. I think none of us would want to be tried without a lawyer for a criminal offense. As Justice Black said in his opinion, "People with money hire lawyers to defend them," so it seems like that's a desirable thing to do. And if you can't afford it, the state must provide it.

BuzzFlash: Why is this so important? There are many people who would ask, why even bother giving such a person an attorney? The guy's been convicted four times. Why are we wasting society's dollars on giving him representation? I assume you agree that if we don't allow justice for everyone, regardless of their background, then we may end up with justice only for a privileged few.

Anthony Lewis: You've come awfully close to the issue that moves me more than any other today, which is with the detention of prisoners at Guantanamo and the torture of the detainees. It illustrates how, when people are not treated justly, it's bad for all of us. It demeans us as Americans. That's why we have a Constitution that says no person shall be deprived of life, liberty or property without due process of law. It's a simple statement. And it's about the individual. It says no person shall be deprived of life, liberty or property without due process of law. That's what distinguishes this country -- the rights of the individual.

BuzzFlash: I'll hone in on a point. There always has been a presumption among a certain group of people -- some of this goes back to slavery -- that one's background determines whether one is of a certain class or background to actually merit the application of legal systems and of justice.

Anthony Lewis: Of course it goes back to slavery. It was said in the Dred Scott case that people with black skin were not equal to all others. They weren't regarded as part of the Constitution. Again and again in our history, we've had occasions when we've treated some people as less equal than others. We also had the whole anti-Catholic, Know-Nothing party in the middle of the nineteenth century. We had the whole McCarthy period in the twentieth century. There's always a danger of excluding a minority, whether it's an ethnic minority, a political minority, an ideological minority. And that's the dilemma of a democratic state.

Madison saw it right back at the beginning, and other framers of our Constitution, that if you had a republic that was "the majority wins" in voting, how do you keep that majority from oppressing the minority or minorities? The answer we've developed over these centuries is the protection of the court.

BuzzFlash: You're obviously alarmed by the disregard for the concept of habeas corpus by the Bush administration.

Anthony Lewis: Yes, that's right. Let me give you an example. In Britain, right now, there's a very sharp political battle over whether to extend the time you can hold suspected terrorists without trial from 28 days to 52 days. Well, in this country, we've held suspected terrorists for years with no limits. And I think people are insufficiently exercised about that.

Detention without trial is the hallmark of tyranny. The classic answer to prevent this, going back to the Magna Carta, is habeas corpus, which simply means that a person who is detained has the right to go into court and make the government -- the person detaining him or her -- show by what authority he's being detained. What have I done? Why am I being detained? That seems like a pretty simple demand of justice, but we're not answering it.

BuzzFlash: In the Guantanamo case, it's been shown that many of the people are there because the U.S. government paid certain people an amount of money and said, well, tell us who's al-Qaeda. And there's never been any proof that these people are al-Qaeda. When we say they're suspected terrorists, we have no idea whether a lot of them are terrorists. The Bush administration just put those people there and said they're terrorists, they're bad people, so we need to treat them badly.

Anthony Lewis: "The worst of the worst," then-Secretary of Defense Rumsfeld said. With no basis whatever for his statement -- none -- because nobody had had any hearing. Nobody had been shown to be the worst of the worst, or good, or bad, or anything else. They were just locked up without any evidence, without anything. Now some of them are bad, I'm sure. But half of them have been released -- or more than half, by now. In almost all cases, they've been sent back to their home country and just released because the home country found nothing wrong with them.

BuzzFlash: Let's move to your latest book, Freedom for the Thought That We Hate:A Biography of the First Amendment. As you point out in your book, there is elasticity in the way the United States legal system, the Supreme Court and the lower courts, have looked at the First Amendment over the years. The modern concept of free speech developed relatively recently in terms of First Amendment rights. What does that say about those like Anthony Scalia who claim that the Constitution is a fixed document, and we just need to go back to the original intent and everything will be fine.

Anthony Lewis: There's a certain irony in what you just said because Justice Scalia is an originalist, as you put it, who thinks we should enforce the Constitution as the framers understood the words. Very often, it's not a very workable doctrine, in my view, because the framers didn't mean their words to have a fixed meaning when they used general phrases like freedom of speech or due process of law. They expected that general phrase to be filled in by experience and time.

The irony is that Justice Scalia is a very strong First Amendment man, and has voted to enforce freedom of speech and expression in ways that would have been quite novel to the framers of the Constitution. For example, he voted for the decision that protected the man that burned the flag. He found that flag-burning was protected as a mode of political expression. Well, that was certainly not what Madison had in mind.

BuzzFlash: To me, one of the original problems with the whole concept of original intent is that when you look at the debates over the Constitution on the federal level, and within the states that ratified the Constitution, people had different interpretations.

Anthony Lewis: Of course, you're right. Of course, they said many different things, and it's impossible to ascertain with any degree of exactitude exactly what they meant.

BuzzFlash: In reading through your book, what comes home clearly is that one of the beauties of the American Constitution is that it's dynamic, that it can be reviewed and adapted over ages. Otherwise, why would you even have a Supreme Court or a court system?

Anthony Lewis: That's certainly true. But let me first emphasize the significance of what you said about relatively recent enforcement of the First Amendment. The First Amendment was added to the Constitution in 1791. The first time the Supreme Court of the United States ever protected freedom of speech under the First Amendment, finding in favor of a speaker, was in 1931. Just think of that. From 1791 to 1931, no enforcement of the free speech clauses. And then, suddenly, the Court began giving that very strong statement in the First Amendment -- Congress shall make no law abridging the freedom of speech or of the press -- giving that a profound meaning and expanding it from 1931 right through to the present. So we are where we are because the judges had read the First Amendment in that expressive way.

BuzzFlash: Why did it take so long? Did the courts become, as the right wing charges, suddenly activist courts, and start to change the understanding of the First Amendment? Or did they just adapt it to current demands?

Anthony Lewis: What's activism? Is it activist to ignore the very words of the First Amendment? Or is it activist to enforce them? I think the word activist is not very helpful. It just depends how you read those words in the context of our society.

I believe that we are an open society and an outspoken society, even though the First Amendment wasn't enforced by the courts. The history of the United States has been of an outspoken society from the beginning, despite the laggard performance of the Court in catching up with the Constitution.

Let me give you an example. In 1919, just after World War I, a group of radicals who threw pamphlets from the top of a building in New York, objecting to President Wilson's dispatching American troops to Russia after the Bolshevik revolution, were convicted of espionage and sentenced to twenty years in prison. Twenty years for throwing a pamphlet. And Holmes wrote the first opinion ever in favor of free speech from the Supreme Court. It was a dissenting opinion by Justice Holmes. And it really was as late as 1919, punishing people for criticizing the president. That's unthinkable today.

BuzzFlash: I was personally astonished to read in your book about the sedition laws in Montana. People were jailed for just muttering something in a tavern.

Anthony Lewis: Yes, lots were arrested in taverns. They were half-drunk and they said: What a bunch of hooey all this censorship is. And the next thing they knew, they were in jail for ten years. That was the World War I spirit. This was a time when we were so jingoistic that the name of "sauerkraut" was changed to "liberty cabbage." Something gripped the American mind.

BuzzFlash: That's not unlike the name change that the Republicans had from French fries to American fries. And that was a hallmark of your New York Times columns -- to state the importance of free speech in a society, that this is a hallmark of what makes us Americans -- Freedom for the Thought That We Hate.

Anthony Lewis: Again, that's from Justice Holmes. The most important thing in the Constitution that demands our compliance is freedom of thought. Not freedom for those who agree with us, but freedom for the thought we hate. That's hard to do, but we manage it.

BuzzFlash: Let's look at the Patriot Act. And also there's an act being considered by Congress with the potential to bring us to the point where, if we say, well, I don't agree with al-Qaeda, but they do have some valid points and some grievances, the Bush administration could say, you are enabling terrorists and supporting terrorism.They would no longer be regarding that as free speech.

Anthony Lewis: It hasn't happened yet, and I honestly don't think that even the Bush administration would be stupid enough to try to put somebody in jail for saying that. But it's possible. The statutes which are already passed that make it a crime to "support terrorism" are so broadly worded that a zealous and politically ambitious prosecutor could try to do the very thing you said -- prosecute somebody for saying, al-Qaeda has a few good points to make.

BuzzFlash: Why did you decide to write this book? And why do you think free speech is such an essential quality of the American experience, the American culture and the American government?

Anthony Lewis: I've traveled a lot around the world. I've been a journalist for fifty, sixty years, and I've seen a lot of other societies. Many of them have admirable aspects, but none of them has the same degree of openness that we do. I think that is our distinguishing characteristic and I think we ought to treasure it.

People take it for granted, and that's why I wrote the book. I've also taught this subject at various universities, for a long time -- 35 years, something like that. People don't really appreciate what great advantages they have as Americans in their freedom. I think it's a good thing to be reminded of. It also helps us to preserve it. If we understand it, and know how hard it was to achieve, we might fight a littler harder to preserve it.

BuzzFlash: You do bring up in your book that old saw that shouting fire in a crowded theater is not free speech. You say there are limits. You can't say just anything in the world if it's dangerous. But let me ask you this, as an example. As a progressive, I find it detestable that Ann Coulter would say that Timothy McVeigh went to the wrong place. He should have gone to your former employer, and blow up TheNew York Times building in Manhattan.

Anthony Lewis: I think that was my favorite statement of hers.

BuzzFlash: Is that just something that we have to accept as a right of free speech, just as the right wing has to accept what we say that may be aggressive?

Anthony Lewis: My answer to that is unhesitatingly yes. We have to accept it unless the Supreme Court has decided that a speaker -- in this case, Ann Coulter -- intends for a statement to cause violence and is likely to occur.

If she's speaking to a bunch of people with bombs at the ready, and she says, "Let's go to TheNew York Times and blow it up because we hate it" -- and there are people in that audience ready to do it, I think she can be convicted of a crime. But not for making the absurd statement of the kind you quoted.

BuzzFlash: What is the role of journalism? Journalists such as yourself have the right to have confidential sources. Where do you see that fitting in with the First Amendment issue?

Anthony Lewis: I take a somewhat guarded view of the claim to a privilege not to disclose sources, because I think sometimes there are other interests involved. I have a chapter in the book on that issue.

I think the real test of journalism in recent years is the willingness to tangle with the government. For a period after the 9/11 attack on the World Trade Center and the Pentagon, the press was a tame puppy. It didn't seem to want to hold the government accountable, which is its highest function. It allowed us to waltz into the Iraq war with all the premises, which have turned out to be false, unexamined by the press. And indeed, TheNew York Times and TheWashington Post both published apologies for their inept performance.

I think the papers were overwhelmed by the sense of fear and terror, and the need for presidential leadership, and all that that gripped people after 9/11. But their performance has improved lately, after we've gotten further away from that terrorist monstrosity. And the Times and the Post, to mention two papers, have been very good at bringing out things like torture and secret prisons, and illegal wire-tapping and so on. But we rely tremendously on the press to keep government accountable.

BuzzFlash: We've had the emergence in recent years of something called hate crimes, with statues both on the federal level and in some states. In Germany, one can be found guilty of being a member of a hate group or even articulating thoughts that are at variance with the government. For instance, you can be convicted in Germany, of being a Nazi revisionist.

Anthony Lewis: Or having Nazi paraphernalia.

BuzzFlash: How does it strengthen us as a nation to allow expressions of hate? Here in Chicago at Northwestern University, there's a professor who's a Holocaust revisionist. As disgusting as we find such theories and people, how does that strengthen us as a nation that those people have a right to take that deplorable position?

Anthony Lewis: I think it shows an enormous degree of self-confidence as a society to allow such detestable people to speak. As your very example shows, I think these are not universalities around the world. It depends very much on the experience of the society. And it's hardly surprising that the Germans, as a people, after coming to grips with their past, have a different view of the danger of Nazi symbols than we do. That's not surprising. A French friend of mine once said that the American attitude towards these issues, the very issues of letting neo-Nazis, pro-Nazis, speak -- shows an amazing optimism which Europeans can't summon up, given their horrible recent history. Optimism is one word. And another is the one I use, which is self-confidence -- that you think these people can be brushed off and are not a danger. The Germans can't do that because they lived through somebody who started in a Munich beer hall and killed six million people.

BuzzFlash: You mention in your book the Nazi march in Skokie.

Anthony Lewis: Right, a good example of what we will tolerate as a society. Ultimately, I think it strengthened us because we were able to say these detestable people they can march in Skokie. And even though they did it to be provocative in the most sensitive place, because Skokie had a lot of Holocaust survivors living there in that Chicago suburb, we can stand it. They're not going to bother us. They're not going to make us go down to their level. It takes a good deal of sang froid.

BuzzFlash: What is your view of our reaction to 9/11? We saw a willingness on the part of Congress, at the vigorous behest of the Executive Branch, to curtail our civil liberties.

Anthony Lewis: We have two American citizens held in detention without trial on suspicion of terrorist activities. That was a very dangerous example.

BuzzFlash: Do you have any fear, were there to be another terrorist attack, that this would lead beyond the legally allowable curtailment of civil liberties which already has been passed? Would the next step be the curtailment of the First Amendment right?

Anthony Lewis: I think it's very possible. I look at the possibility of another big-scale terrorist attack with a good deal of apprehension, because I think events like that lower our guard against incursions on civil liberties. A great many people get swept up in fear. It happened in World War I. It happened in the McCarthy period. It happened in the Twenties. This country is not immune to fear-mongering and the results of it. So I'm definitely afraid.

And the trouble with this so-called war on terror is it doesn't have any end. It's going to go on for the rest of our lives, as far as I can see. We're not going to go and say we won, and Osama bin Laden isn't going to march onto the deck of a battle ship and say "I surrender." We're going to live with the possibility of terrorism for a very long time. And it's not going to be fun.

BuzzFlash: President Bush persistently says that the terrorists "hate us for our liberties," and don't want us to have them. And yet the reaction of this administration has been to curtail our liberties.

Anthony Lewis: That's a nice point.

BuzzFlash: It seems that, in a way, despite all the bravado of the Bush-Cheney administration, if you follow their own rhetoric that the terrorists "hate us for our liberties," that they are giving in to the terrorists by taking away those very rights that they claim the terrorists hate us for.

Anthony Lewis: Let me answer you this way. I think Osama bin Laden has had effects far more sweeping on American society than he could have imagined. I think he has instilled the fear that has produced the results you've described. I think the President's statement -- they hate us for our liberties -- is false in the first place. I don't think they want liberties. They don't believe in them. I don't think they hate us for our liberties. I think they hate us for their sense of violation of their territory, their religion.

BuzzFlash: See, now, you're going to get yourself in trouble.

Anthony Lewis: I don't profess to psychoanalyze al-Qaeda. I think they have a lot of reasons. But I don't think hating us for our liberties is the main one.

BuzzFlash: And yet, for whatever reason, Bush has made it a self-fulfilling prophesy.

Anthony Lewis: That's right.

BuzzFlash: Given the dynamic nature of the First Amendment, and our elasticity in allowing even hate speech, absent another 9/11-type of terrorist attack, do you contemplate that the First Amendment will continue to thrive in this country?

Anthony Lewis: Yes, I do. There are other issues that I can't be so optimistic about, particularly torture and unending detention, which we seem to be unable to do anything about -- we, meaning the body politic. But yes, barring, as you say, another large terrorist attack, I'm quite confident about the First Amendment.